Judge: Gary Y. Tanaka, Case: 20STCV19420, Date: 2022-07-25 Tentative Ruling
Case Number: 20STCV19420 Hearing Date: July 25, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday, July 25, 2022
Department B Calendar No. 5
PROCEEDINGS
Tamara Bard v. La Pointe Maintenance Association, Inc., et al.
20STCV19420
Bobbie Lopez’s Motion to Strike Portions of First Amended Complaint
Tamara Bard’s Motion for Leave to Conduct Financial Discovery
TENTATIVE RULING
Bobbie Lopez’s Motion to Strike Portions of First Amended Complaint is denied.
Tamara Bard’s Motion for Leave to Conduct Financial Discovery is denied.
Background
Plaintiff filed her Complaint on May 21, 2020. Plaintiff’s operative First Amended Complaint was filed on January 20, 2022. Plaintiff alleges the following facts. Plaintiff’s Complaint arises out of a dog bite injury and has alleged causes of action against the dog owner Bobbie Lopez as well as La Point Maintenance Association, Inc (the “HOA”), and its property management companies. Plaintiff alleges the following causes of action: 1. Negligence; 2. Premises Liability; 3. Strict Liability.
Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.
Meet and Confer
Defendant set forth a meet and confer declaration in sufficient compliance with CCP § 435.5. (Decl., Lilia Clement, ¶¶ 3-10.)
Objections
Plaintiff’s objection number 1 is sustained. Objection number 2, referring to extrinsic facts, is overruled. The purported facts were presented as mere argument. No extrinsic evidence was attached and the Court, thus, did not consider extrinsic facts or evidence in its ruling.
Motion to Strike
Defendant moves to strike the following portions of the First Amended Complaint: 1. Paragraph 28, lines 14-18. 2. Paragraph 34, page10, lines 20-23 and page 10, line 27 – page 11, line 3. 3. Paragraph 35. 4. Paragraph 58. 5. Paragraph 59. 6. Prayer for Relief, paragraph 3, lines 20-21, “Punitive Damages.” Defendant argues that Plaintiff has failed to state the requisite specific facts to state a claim for punitive damages.
Civ. Code, § 3294 states, in relevant part:
“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.
(c) As used in this section, the following definitions shall apply:
(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”
A Complaint’s “conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud, or malice, express or implied, within the meaning of section 3294.” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. Here, however, Plaintiff has alleged specific facts to support the claim for punitive damages and not merely conclusions.
Plaintiff has alleged facts stating that Defendant acted despicably with conscious disregard for the rights of others. Namely, Plaintiff alleged that, before the attack on Plaintiff, Defendant’s dog had attacked and injured at least two other people in a one year. After the first two attacks, Defendant was ordered by the veterinarian to muzzle the dog while outside. However, despite this order, Defendant disregarded this order and continued to walk the dog without a muzzle. (FAC, ¶¶ 22-28.) These facts may support a theory that Defendant acted with the conscious disregard for the safety of others.
The Court also notes that this motion to strike was filed and served late pursuant to Cal. Rules of Court, Rule 3.1322(b).
Therefore, the motion to strike is denied.
Defendant is ordered to file and serve an Answer within 10 days of this date.
Motion for Financial Discovery
“No pretrial discovery by the plaintiff shall be permitted with respect to the evidence referred to in paragraphs (1) and (2) of subdivision (a) unless the court enters an order permitting such discovery pursuant to this subdivision. However, the plaintiff may subpoena documents or witnesses to be available at the trial for the purpose of establishing the profits or financial condition referred to in subdivision (a), and the defendant may be required to identify documents in the defendant's possession which are relevant and admissible for that purpose and the witnesses employed by or related to the defendant who would be most competent to testify to those facts. Upon motion by the plaintiff supported by appropriate affidavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Such order shall not be considered to be a determination on the merits of the claim or any defense thereto and shall not be given in evidence or referred to at the trial.” Civ. Code, § 3295(c).
“Against this backdrop of legislative intent, in which protecting the financial privacy of defendants is paramount, we interpret the language of section 3295(c), requiring the trial court to find based on supporting and opposing affidavits that the plaintiff has established there is a substantial probability he will prevail on his claim for punitive damages, to mean that before a court may enter an order permitting discovery of a defendant's financial condition, it must (1) weigh the evidence submitted in favor of and in opposition to motion for discovery, and (2) make a finding that it is very likely the plaintiff will prevail on his claim for punitive damages. In this context, we interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests. We note that the Legislature did not use the term ‘reasonable probability’ or simply ‘probability,’ which would imply a lower threshold of ‘more likely than not.’” Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758.
Plaintiff moves for an order permitting discovery of Defendant’s finances on the ground that there is a substantial probability that Plaintiff will prevail on the merits of her claims entitling her to punitive damages. In support of her motion, Plaintiff submitted evidence which supports the facts already referenced above in connection with the allegations and prayer for punitive damages. (Plaintiff’s Exs. A-F.) The Court does note, however, that, after reviewing the veterinarian’s deposition testimony, characterizing his statements regarding a muzzle as an “order” is not necessarily the most accurate description. The statements regarding the muzzle are probably best characterized as a recommendation. (Plaintiff’s Ex. C, page 35: 4-13.) The veterinarian does state that muzzling the dog would have prevented a bite incident. (Id., at 114: 10-13.)
In contrast, Defendant submitted her own declaration. As far as a pure recitation of the facts, Defendant’s declaration does not deviate all that substantially from Plaintiff’s version. Defendant states that the dog was with the family for six years without incident and was well socialized. Defendant reiterates her belief that she took all necessary steps to train and rehabilitate the dog. As far as the muzzle, she states that each time she attempted to use the muzzle, the dog would immediately get out of it. (Decl., Bobbie Lopez, ¶¶ 8-18.)
Pursuant to Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758, the Court must “weigh the evidence submitted in favor of and in opposition to motion for discovery” and can only grant the motion if it makes “a finding that it is very likely the plaintiff will prevail on [her] claim for punitive damages.” In weighing the evidence, the Court finds that, for purposes of this motion, Plaintiff has failed to establish the very high burden of “substantial probability” of prevailing on the claim for punitive damages. While it is certainly possible, based on the evidence presented, that a trier of fact may award punitive damages, it is certainly not “very likely” as required under the standard reiterated in Jabro. Again, the Court must be mindful, as noted in Jabro, of the Defendant’s right of financial privacy.
Therefore, Plaintiff’s motion for order permitting discovery of Defendant’s finances is denied.
Plaintiff is ordered to give notice of this ruling.